Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)

Issues in international environmental law

5. State responsibility, liability, and remedial measures under international law: new criteria for environmental protection

(introductory text...)

1. The evolving law of state responsibility

2. New environmental realities and their impact upon the law

3. Conceptual developments and the new basic principle of international law

4. The expanding scope of the law: global reach and international cooperation

5. Material changes in the law of state responsibility

6. Expanding the protection of the affected interests

7. Liability for acts not prohibited by international law: the ongoing debate

8. The expanding role of practice: substantive and procedural developments

9. The protection of the marine environment: a leading case of innovation

10. The Antarctic environment: developing a comprehensive regime for responsibility and liability

11. The new law of state responsibility: improvement and caution

12. Avoiding environmental degradation and opposing the world ecological government: a conclusion

Notes

3. Conceptual developments and the new basic principle of international law

The work of the International Law Commission, learned societies,
and distinguished writers of international law have greatly clarified the
conceptual framework governing this particular area of the law. First, a useful
distinction has emerged that separates international "responsibility" from
international "liability," the former arises from unlawful acts while the latter
has come to encompass both lawful and unlawful activities. The idea of state
liability for acts not prohibited by international law has also emerged in this
context.4

This distinction has not passed unchallenged. Brownlie has made
the argument that the normal principles of state responsibility can well sustain
liability, particularly as it concerns extra-hazardous operations.5
In this context the critical issue is the content of the rules and not the
distinction between lawful and unlawful activities, especially since either way
leads to reparation and compensation. In practice, however, this distinction is
gaining ground in several treaty regimes, although it is also true that a number
of legal consequences are attached to given activities resulting in damage
irrespective of their lawful or unlawful character.

A second conceptual development serves as a useful analytical
tool: the distinction between "primary" and "secondary" rules. The former relate
to obligations, the breach of which may lead to responsibility, while the latter
relate to the legal consequences of failure to comply with the obligations
arising from the primary rules. Secondary rules are those specifically dealing
with the issue of responsibility and liability, although these issues cannot
always actually be separated from the operation of the primary rules.

The important document prepared by the Italian government on the
international law of the environment6 indicates that in practice one
can observe significant developments in the treaty rules dealing with the
environment (the primary rules), but not a parallel evolution in the rules on
responsibility, which are either non-existent or overly general in those
regimes. The result is that the secondary rules lag behind those developed in
the primary level.

In spite of these shortcomings, practice shows the acceptance of a
general principle of responsibility for environmental damage caused by
activities within state jurisdiction or control.7 While this
principle is generally accepted, it would not seem that the International Law
Commission approach of regarding its violation as an international crime meets
with general approval. The existence of a principle of international law
embodying the obligation not to degrade the environment is further reinforced by
the new conceptual approaches influencing the development of the law in this
field, namely the concepts of intergenerational equity, human rights, and
environmental
security.